Case: 15-30516   Document: 00513470044        Page: 1   Date Filed: 04/19/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 15-30516                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            April 19, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JASON DANIEL SCOTT,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Jason Daniel Scott pleaded guilty to one count of possessing child
pornography and was sentenced to 108 months in prison and a lifetime term
of supervised release.    He appeals the district court’s calculation of his
Sentencing Guidelines range and the length and conditions of his supervised
release. We VACATE and REMAND for resentencing.
                                         I.
      A grand jury indicted Scott on one count of possessing child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B) and three counts of receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He originally pleaded
guilty to one count of receiving child pornography and was sentenced to 235
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                                 No. 15-30516
months in prison and a ten-year term of supervised release. This conviction
and sentence, though, were vacated after Scott filed a 28 U.S.C. § 2255 motion
alleging, among other things, that he pleaded guilty because his counsel
assured him that the district judge had told a mutual friend that Scott would
get “hammered” if he went to trial, but that the judge would “take it easy on
him” by sentencing him to only five years if Scott pleaded guilty.
      Following this unusual course of events, Scott pleaded guilty again—this
time to the single count of possessing child pornography. According to the new
plea agreement’s stipulated factual basis and unrebutted statements in the
Presentence Investigation Report (PSR), agents conducting an investigation
into the use of a computer program called LimeWire determined that Scott’s
computer “was actively downloading and possessing child pornography.” The
agents were able to download three illicit videos from the “shared” file folder
on Scott’s computer associated with LimeWire, and through a forensic
examination of Scott’s computer confirmed that those videos were downloaded
from the internet.
      The record contains little information about LimeWire. The factual basis
states that LimeWire “is used to trade files among members” and “regularly
used to distribute child pornography.” The PSR adds that LimeWire is “peer-
to-peer” software.   For background purposes, we refer to other courts’
explanations:
      LimeWire is a file-sharing program that utilizes “peer-to-peer”
      (“P2P”) technology. By employing P2P technology, LimeWire
      permits its users to share digital files via an Internet-based
      network known as the “Gnutella network.” LimeWire users can
      share almost all files stored on their computers with other
      LimeWire users. When a LimeWire user wishes to locate digital
      files available through the network, she enters search criteria into
      the search function on LimeWire’s user interface. LimeWire then
      scans the computers of other LimeWire users, to locate files that

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                                  No. 15-30516
      match the search criteria. The LimeWire user can download any
      files that LimeWire locates.
United States v. Vadnais, 

, 1208 (11th Cir. 2012) (quoting Arista
Records LLC v. Lime Group LLC, 

, 410–11 (S.D.N.Y. 2011)).
The searchable files are located in “shared folder[s] . . . created by the software
on the computers of other users.” 

a user downloads a file, a copy
“is placed in a designated sharing folder on the requesting user’s computer.”

Studios, Inc. v. Grokster, Ltd., 

,
921 (2005)).    This placement in a shared folder is “automatic[]” based on
LimeWire’s default (but optional) file-sharing setting which makes downloaded
files “retrievable by other LimeWire users”:

      LimeWire encourages its users to share files and its “default
      settings make all files that a user downloads through LimeWire
      available to other LimeWire users for download.” However, a user
      may change the default settings. “[A] user could turn off sharing
      altogether, designate another folder with a different name to serve
      as the ‘Shared’ folder, [or] manually remove files from the ‘Shared’
      folder (or whatever folder had been designated) and prevent them
      from being shared on an individual basis.”

(first alteration in original) (citation omitted). It appears that
a user who does not share files can still download them—that is, LimeWire
permits “freeloading.” 

      Scott informed agents that he used LimeWire and Bit Torrent, which the
PSR identifies as file-sharing programs. Scott also admitted using “search
terms . . . consistent with child pornography videos/images” on those two
programs.      But the record does not contain an admission or other direct
evidence that Scott knew he was making child pornography available to others
or was aware of LimeWire’s default file-sharing setting.
      In calculating Scott’s Sentencing Guidelines range, however, the PSR
applied a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for

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                                      No. 15-30516
“[d]istribution [of child pornography] for the receipt, or expectation of receipt,
of a thing of value, but not for pecuniary gain.” Scott objected and suggested
that the two-level enhancement under § 2G2.2(b)(3)(F) for “[d]istribution other
than distribution described in subdivisions (A) through (E)” applied instead.
The addendum to the PSR disagreed, explaining that Scott “had the file
sharing function of [LimeWire] turned on . . . allowing him to not only receive
. . . but to ‘distribute’ child pornography,” and noting that § 2G2.2(b)(3)(B)
applies when a defendant trades child pornography in exchange for more child
pornography. Scott submitted the same objection to the district court, pointing
out that he was convicted of possession, not distribution, and arguing that
there was no evidence that he knew he was making pornography available to
others or that he was a sophisticated computer user who might be presumed
cognizant of his sharing. The district court overruled the objection in a written
memorandum, citing this court’s decision in United States v. Groce, 

(5th Cir. 2015), along with the conclusion that “Scott, by using Limewire
and other peer-to-peer file sharing programs, agreed to share the child
pornography he gathered.”
       The district court then sentenced Scott to 108 months in prison. 1 It also
imposed a lifetime term of supervised release with special conditions including
absolute bans on (1) having “access to any computer that is capable of internet
access” or (2) having “unsupervised contact with anyone under the age of 18,”
and requirements that he (3) register as a sex offender and (4) “consent to
installation of monitoring software on any computer to which [he] has access.”
Scott timely appealed his sentence.



       1We note that Scott’s written judgment reflects a sentence of 109 months, in conflict
with the oral pronouncement of 108 months. Of course, “[w]here there is an actual conflict
between the district court's oral pronouncement of sentence and the written judgment, the
oral pronouncement controls.” United States v. Mireles, 

, 557 (5th Cir. 2006).
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                                        II.
      We review criminal sentences—including conditions of supervised
release—using a two-step abuse-of-discretion standard.         United States v.
Richardson, 

, 508 (5th Cir. 2012); United States v. Rodriguez, 

, 411–12 (5th Cir. 2009). First, we ensure that the district judge
committed no significant procedural error such as improperly calculating the
Sentencing Guidelines range. 

. Second, we review
the substantive reasonableness of the sentence for abuse of discretion. 

the district court’s interpretation of the Guidelines de novo, and its
factual findings for clear error. 

first argues that the district court committed procedural error by
applying an incorrect sentencing enhancement.           A five-level sentencing
enhancement applies to § 2252A(a)(5)(B) convictions if the offense involved
“[d]istribution [of child pornography] for the receipt, or expectation of receipt,
of a thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). A
two-level enhancement applies for “[d]istribution other than distribution
described in subdivisions (A) through (E).” 

As with all
sentencing enhancements, the prosecution has the burden of proving
§ 2G2.2(b)(3)(B)’s applicability by a preponderance of the evidence. See United
States v. Juarez, 

, 251 (5th Cir. 2010).
      It is undisputed that “‘distribution as defined in § 2G2.2 includes
operating a file sharing program that enables other participating users to
access and download files [then automatically] placed in a shared folder’
available to other users.” United States v. Baker, 

, 620 (5th Cir.
2014) (alteration in original) (quoting United States v. Dodd, 

,
452–53 (8th Cir. 2010)); see also United States v. Richardson, 

,
236 (5th Cir. 2013). But the parties contest whether Scott distributed child
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                                 No. 15-30516
pornography “for the receipt, or expectation of receipt, of a thing of value” so
as to warrant the five-level enhancement.
      The key Fifth Circuit case interpreting § 2G2.2(b)(3)(B) in this context is
Groce, in which the defendant pleaded guilty to receiving child pornography
using a peer-to-peer file sharing 

–94. This court
rejected Groce’s argument that § 2G2.2(b)(3)(B) should not apply because he
didn’t expect to receive anything for sharing files, explaining:
      Generally, when a defendant knowingly uses peer-to-peer file
      sharing software, however, he engages in the kind of distribution
      contemplated by § 2G2.2(b)(3)(B). A peer-to-peer file sharing
      program “lets users exchange digital files through a network of
      linked computers.” By using this software as Groce has, the user
      agrees to distribute the child pornography on his computer in
      exchange for additional child pornography. This is precisely the
      kind of exchange contemplated by § 2G2.2(b)(3)(B).

(emphasis added) (citation omitted). After noting that we had
approved the five-level enhancement in unpublished cases involving the
“knowing use of peer-to-peer file sharing software,” we affirmed the district
court’s application of § 2G2.2(b)(3)(B), reasoning:
      Groce knowingly used Frostwire, a type of peer-to-peer file sharing
      software, to download and distribute child pornography. Groce
      admitted installing and uninstalling peer-to-peer software
      numerous times. Groce was familiar with search terms that
      return images of child pornography. Groce knew that other users
      could download his files and that, by allowing users to do so, he
      would be distributing child pornography. Finally, Groce admitted
      that he “was always careful not to allow anybody to download
      much off of me,” implying that he knowingly let some users
      download from him. The district court thus correctly concluded
      that Groce distributed child pornography in exchange for a non-
      pecuniary thing [of] value.

(first emphasis added).
      In Groce, it was clear that the defendant knew he was distributing child
pornography to others, supporting the inference of a knowing, reciprocal
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                                        No. 15-30516
exchange or expectation thereof. 2 That is significant because, as we have
observed, a “defendant could not receive or anticipate receiving a thing of value
in exchange for his distribution unless cognizant of his sharing.” 

. And other circuits universally agree that a defendant’s unknowing
distribution of child pornography through file-sharing software does not
trigger the five-level enhancement. See 

(“It is . . .
generally accepted both in this circuit and others that the five-level
enhancement under § 2G2.2(b)(3)(B) applies only where the defendant knew
that he was distributing child pornography in exchange for a thing of value
through his use of file-sharing software.”); see also United States v. Hernandez,

, 1165–66 (9th Cir. 2015); United States v. Mabee, 

,
674 (6th Cir. 2014); United States v. McManus, 

, 319 (4th Cir.
2013); United States v. Durham, 

, 931 (8th Cir. 2010); United
States v. Vadnais, 

, 1209 (11th Cir. 2009); United States v.
Geiner, 

, 1111 (10th Cir. 2007).
       Here, we cannot ascertain whether the district court made the requisite
finding that Scott “knowingly” used LimeWire to “download and distribute
child pornography” within the meaning of § 2G2.2(b)(3)(B). See 

. The district court’s memorandum overruling Scott’s objection stated:
“Pursuant to the reasoning of the court in Groce, Scott, by using Limewire and
other peer-to-peer file sharing programs, agreed to share the child


       2 To the extent the Government argues that these facts were irrelevant to Groce’s
disposition, we disagree and note that a sister circuit has rejected a similar argument. See
United States v. Stults, 

, 848–49 (8th Cir. 2009) (rejecting the government’s
argument that § 2G2.2(b)(3)(B) applies every time a defendant uses file-sharing software,
and explaining that a previous case’s statement that § 2G2.2(b)(3)(B) applies when a
defendant shares files through a peer-to-peer network “was inseparable from [the court’s]
conclusion that the ‘government met its burden of establishing that [the defendant] expected
to receive a thing of value . . .’ by introducing the defendant’s admissions” that he “knew that,
by using [a file-sharing network], other . . . users could download files from him” (quoting
United States v. Griffin, 

, 1013 (8th Cir. 2007)).
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                                     No. 15-30516
pornography he gathered.” The only facts mentioned in that memorandum
establish how LimeWire works and that Scott used it to download child
pornography—but say nothing about Scott’s knowledge. 3 Thus, the district
court made no express finding that Scott knowingly used LimeWire to
exchange child pornography, so as to implicate Groce’s logic of an “agree[ment]
to distribute the child pornography on his computer in exchange for additional
child pornography.” 

cannot tell whether the district court implicitly made the
required finding. Unlike in Groce, there is no evidence that Scott “knew that
others could download his files” and “knowingly let some users download from
him.” See 

cf. United States v. Mabee, 

, 675 (6th Cir.
2014) (affirming enhancement where defendant who used different software
acknowledged that he “got into distribution of child pornography because in
order to receive it, he had to agree that it was open for distribution” (brackets
and emphasis omitted)). And unlike in other cases, the district court pointed
to no circumstantial evidence supporting a finding that Scott knew he was
distributing child pornography in exchange for more of the same. Cf. United
States v. Binney, 562 F. App’x 376, 379–80 (6th Cir. 2014) (per curiam)
(affirming enhancement where defendant maintained a list of users who
shared child pornography and made an “extensive collection of child
pornography” available to others); United States v. Stults, 

, 849
(8th Cir. 2009) (affirming enhancement where the district court cited
circumstantial evidence “in support of its determination that Stults’s level of
computer proficiency supported a finding that he knew how LimeWire


      3  Before discussing Groce, the district court noted: “Scott used Limewire to upload
child pornography. Limewire is used to trade files among members. Forensic examination
of Scott’s computer revealed the presence of 3 videos which contained images of child
pornography. Also on the computer were cartoon images which included drawings of children
being sexually exploited.”
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                                       No. 15-30516
worked,” including ownership of multiple computers and multiple CD-ROMs
storing “substantial data obtained from other LimeWire users”).
       We therefore remand for the district court to determine whether the
Government has met its burden of proving by a preponderance of the evidence
that Scott knowingly used LimeWire in “the kind of exchange contemplated by
§ 2G2.2(b)(3)(B).” See 

; United States v. Register, 

, 314 (5th Cir. 1991) (remanding where factual findings were
insufficient to review applicability of enhancement). 4
                                             IV.
       “A district court has wide, but not unfettered, discretion in imposing
terms and conditions of supervised release.” United States v. Duke, 

, 398 (5th Cir. 2015) (per curiam). That discretion is cabined in two ways:
       First, the condition of supervised release must be “reasonably
       related” to one of four statutory factors: (1) the nature and
       characteristics of the offense and the history and characteristics of
       the defendant; (2) the need for deterrence of criminal conduct; (3)
       the need to protect the public from further crimes of the defendant;
       and (4) the need to provide the defendant with vocational training,
       medical care, or other correctional treatment. Second, the
       condition must be narrowly tailored such that it does not involve a




       4 We note that some evidence not cited by the district court might be relevant. For
example, Scott enrolled in (though did not complete) courses in Computer and Advanced
Electronic Construction and Artificial Intelligence Robotics, which could be probative of his
computer sophistication. Additionally, the PSR prepared for Scott’s second sentencing states
that his computer “was actively downloading and possessing child pornography”—an
arguably important (and per Scott’s counsel at oral argument, negotiated) departure from
the original PSR’s statement that Scott’s computer was observed “actively processing and
trading child pornography.” Consideration of this and other evidence is for the district court,
and we express no opinion on whether the enhancement should ultimately apply.
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                                        No. 15-30516
       “greater deprivation of liberty than is reasonably necessary” to
       fulfill the purposes set forth in [18 U.S.C.] § 3553(a).

Scott argues that his supervised release terms violate
these standards. We first address the standard of review, then turn to the
merits.
                                               A.
       Abuse-of-discretion review typically applies to conditions of supervised
release, but plain-error review applies if the defendant fails to object in the
district court. United States v. Weatherton, 

, 152 (5th Cir. 2009).
Scott did not object to the length of his supervised release term or any of its
conditions when the district court announced them at sentencing. And his
argument that abuse-of-discretion review should nonetheless apply because he
“had no pre-hearing notice” of the length or terms of supervised release fails.
Scott cites no case in which this court has reviewed an unpreserved, alleged
sentencing error for abuse of discretion on this lack-of-notice theory. To the
contrary, when a defendant argued for the first time on appeal that special
conditions were unreasonable and improperly imposed without pre-hearing
notice, we recently reviewed both arguments for plain error. See 

56; see also United States v. Oliphant, 456 F. App’x 456, 458 (5th Cir. 2012)
(per curiam) (expressing doubt as to whether “there is a notice requirement for
any conditions of supervised release”). 5               And despite Scott’s conclusory
assertion that objecting would have been futile, there is no indication that he



       5 Even if notice were required, Scott had notice of the potential length of his supervised
release, as well as most of the special conditions, through the Guidelines. See United States
v. Bryant, 

, 446 (7th Cir. 2014) (“Defendant and lawyer are charged with
knowledge of the sentencing guidelines, which list the standard conditions along with a
number of special ones.”); see also, e.g., U.S.S.G. § 5D1.2(b)(2) (recommending the maximum
term of supervised release for sex offenders, which in this case was life pursuant to 18 U.S.C.
§ 3583(k)); 

(recommending restrictions on computer usage for sex offenses
involving a computer).
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                                  No. 15-30516
was prevented from doing so.        Indeed, after the special conditions were
announced, counsel asked the district court to recommend a drug-abuse
treatment program—and the court agreed. Cf. United States v. Salazar, 

, 448–50 (5th Cir. 2014) (reviewing for abuse of discretion because the
district court repeatedly interrupted counsel’s attempts to object).
      We therefore review Scott’s term of supervised release for plain error
only. Under this standard of review, “[w]hen there was (1) an error below, that
was (2) clear and obvious, and that (3) affected the defendant’s substantial
rights, a ‘court of appeals has the discretion to correct it but no obligation to do
so.’” United States v. Hughes, 

, 659 (5th Cir. 2013) (quoting United
States v. Trejo, 

, 319 (5th Cir. 2010)). “In considering whether an
error is ‘clear or obvious’ we look to the ‘state of the law at the time of appeal,’
and we must decide whether controlling circuit or Supreme Court precedent
has reached the issue in question, or whether the legal question would be
subject to ‘reasonable dispute.’” United States v. Fields, 

, 802 (5th
Cir. 2015) (footnote omitted). Even if the first three prongs are met, a court of
appeals should “remedy the error only if it ‘seriously affected the fairness,
integrity or public reputation of the judicial proceedings.’” 

(quoting United States v. Olano, 

, 735–36 (1993)).
                                        B.
      Scott’s strongest challenges are to the special conditions that, for the rest
of his life, he cannot “have access to any computer that is capable of internet
access” or “have unsupervised contact with anyone under the age of 18.”
Shortly after Scott’s sentencing, this court found erroneous the same lifetime
conditions imposed on a defendant who pleaded guilty to receiving child
pornography. See 

–403. We noted that “[n]o circuit court
of appeals has ever upheld” an absolute lifetime ban on using any computer
with internet access, and found it “hard to imagine that such a sweeping,
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                                        No. 15-30516
lifetime ban could ever satisfy [18 U.S.C.] § 3583(d)’s requirement that a
condition be narrowly tailored to avoid imposing a greater deprivation than
reasonably necessary.” 

We then explained that computer bans
must “be narrowly tailored either by scope or by duration” because, among
other reasons, “the ubiquity and importance of the Internet to the modern
world makes an unconditional, lifetime ban unreasonable.” 

We similarly reasoned that association bans, such as the condition prohibiting
all unsupervised contact with minors, must “be narrowly tailored to achieve
some balance between protecting the defendant’s liberty interest and the
government’s interest in protecting the public.” 

Even construing
the broadly worded contact-with-minors provision to “permit incidental or
chance encounters with minors,” we held the absolute lifetime ban
“unreasonably broad” given its lack of tailoring by duration or scope and the
fact that—as here—Duke did not have any history of directly abusing a child.
See 

      As the Government concedes, the first two prongs of plain-error review
are met because these two conditions, identical to those in Duke, are clearly
erroneous at the time of appellate review. See Henderson v. United States, 

, 1130–31 (2013); 

. The errors affected Scott’s
substantial rights because, had the district judge known how Duke would be
resolved when she sentenced Scott for a similar crime with a shorter statutory
maximum, 6 she presumably would not have imposed the same unconditional
and highly restrictive lifetime bans.
      Finally, regarding whether we should exercise our discretion to grant
relief under the strict requirements of the plain-error standard’s fourth prong,
we are not bound by the Government’s concession of reversible error, United


      6   See 18 U.S.C. § 2252(a)(b)(1) & (2).
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                                    No. 15-30516
States v. Castaneda, 

, 171 (5th Cir. 2013) (per curiam), but we
take into account the Government’s position, candidly expressed in its brief
and in oral argument, that the fourth prong is satisfied. This court recently
highlighted that errors warranting fourth-prong correction are rare and
egregious. See United States v. Segura, 

, 331 (5th Cir. 2014).
“[U]ltimately, whether a sentencing error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings is dependent upon
the degree of the error and the particular facts of the case.” United States v.
John, 

, 288 (5th Cir. 2010). Government counsel argued for
correction of the plain errors here because Scott―a young man―otherwise
would face severe lifelong limits on his freedom of association and his ability
to reintegrate into society that would not have been imposed if the district
judge had the benefit of Duke, decided shortly after Scott’s sentencing. On
these particular facts, we agree.
      Thus, expressing no opinion on whether we would correct these errors if
the Department of Justice had not taken the position that the fourth prong is
met, we exercise our discretion to do so under these circumstances. We note,
however, our disagreement with the Government’s position, stated in its brief,
that “[r]emand for re-sentencing . . . is thus required.” Our discretion on the
fourth prong, see 

, is broad enough that it reasonably
could have been exercised here to deny resentencing; that decision, ultimately,
is the court’s, not the Government’s. See, e.g., Young v. United States, 

, 258–59 (1942) (emphasizing that the court of appeals must independently
examine any alleged errors).
      Accordingly, we vacate the district court’s impositions of lifetime bans on
accessing any computer with internet capability and having any unsupervised
contact with minors. If the district court decides to impose similar conditions
on remand, it may modify them by, among other things, reducing their
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                                       No. 15-30516
duration or conditioning computer usage or contact with minors on court or
probation-officer approval. See 

, 401–02. 7
                                              V.
       For the reasons stated, we VACATE and REMAND Scott’s sentence for
resentencing consistent with this opinion. 8




       7  Scott also argues that the district court erred in requiring him to register as a sex
offender for life and to consent to the installation of monitoring software on any computer to
which he has access. Scott has not shown these special conditions of supervised release to be
plainly erroneous; indeed, he points to no controlling authority reversing either type of
condition under similar circumstances. See 

(explaining that on plain
error review, “we must decide whether controlling circuit or Supreme Court precedent has
reached the issue in question, or whether the legal question would be subject to ‘reasonable
dispute’”). Additionally, a lifetime duration of supervised release is not, itself, plainly
erroneous here; indeed, the Guidelines recommend it, and there is no indication that the
district court “impos[ed] that recommended term blindly and without careful consideration
of the specific facts and circumstances of the case before it.” United States v. Alvarado, 

, 598 n.2 (5th Cir. 2012) (quoting United States v. Kuchler, 285 F. App’x 866, 870 n.2
(3d Cir. 2008)). But of course, the district court is not bound to reimpose any particular
special condition or duration of supervised release at resentencing. See United States v.
Goodwin, 

, 521 (7th Cir. 2013) (“Since the district court’s determinations
regarding the length of the supervisory period and any conditions imposed on Goodwin
during this period may involve interrelated decisions, a reassessment of one of these elements
may provide cause for giving a second look to the entire supervisory regime.”).
        8 Scott’s written judgment incorrectly reflects a conviction for receiving, rather than

possessing, child pornography. The district court should correct this seemingly clerical error
when it issues a new judgment.
                                             14